Recommendations on Uniform Forms and Procedures for the Transportation of Hazardous Materials

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Part 397

[FHWA Docket No. MC-96-10]

Recommendations on Uniform Forms and Procedures for the

Transportation of Hazardous Materials

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of report availability; request for comments.

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SUMMARY: The FHWA is requesting public comment on the final report and

recommendations of the Alliance for Uniform HazMat Transportation

Procedures (the Alliance) concerning the implementation of 49 U.S.C.

5119--formerly referred to as section 22 of the Hazardous Materials

Transportation Uniform Safety Act of 1990 (HMTUSA). Section 5119

requires the Secretary of Transportation (the Secretary) to establish a

working group of State and local government officials to establish

uniform forms and procedures for the registration of persons that

transport hazardous materials by motor vehicle, and to decide whether

to limit the filing of State registration and permit forms and the

collection of filing fees. The Alliance is the working group created to

fulfill the requirements of the HMTUSA, and accordingly, has published

its final report with recommendations which is now available to the

public.

DATES: Written comments must be received on or before November 6, 1996.

ADDRESSES: Submit written, signed comments to FHWA Docket No. MC-96-

10, room 4232, HCC-10, Office of the Chief Counsel, Federal Highway

Administration, 400 Seventh Street, SW., Washington, D. C. 20590. All

comments received will be available for examination at the above

address from 8:30 a.m. to 3:30 p.m., e.t., Monday through Friday,

except Federal holidays. Those desiring notification of receipt of

comments must include a self-addressed, stamped postcard.

FOR FURTHER INFORMATION CONTACT: Mr. Larry W. Minor, Office of Motor

Carrier Research and Standards, (202) 366-4009; Mr. James D. McCauley,

Office of Motor Carrier Safety and Technology, (202) 366-9579; or Mr.

Raymond W. Cuprill, Office of Chief Counsel, (202) 366-0834, Federal

Highway Administration, 400 Seventh Street, SW., Washington, D. C.

20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday

through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

Section 5119 of Title 49, United States Code, requires that the

Secretary establish a working group of State and local government

officials to develop recommendations on uniform forms and procedures

that the States can use to register and permit persons that transport,

or cause the transportation of, hazardous materials by motor vehicle.

The working group is also required to make recommendations as to

whether the filing of registration and permit forms, and the collection

of related fees, should be limited to the State in which a person

resides or has its principal place of business. In developing its

recommendations, the group is required to consult with persons who are

subject to these registration and permit requirements. The

recommendations of the working group are to be included in a final

report to the Secretary of Transportation.1 Finally, section 5119

requires the issuance of regulations implementing those recommendations

with which the Secretary agrees.

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\1\ The report is to be also submitted to the Committee on

Commerce, Science, and Transportation of the Senate, and the

Committee on Public Works and Transportation of the House of

Representatives.

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Section 5119 was originally enacted as section 22 of the Hazardous

Materials Transportation Uniform Safety Act of 1990 (Pub. L. 101-615,

104 Stat. 3244; November 16, 1990). The HMTUSA amended the Hazardous

Materials Transportation Act of 1974 (HMTA), Public Law 93-633, 88

Stat. 2156, which granted regulatory and enforcement authority to the

Secretary to provide adequate protection against the risks to life and

property inherent in the transportation of hazardous materials in

commerce. The HMTA was designed to replace a patchwork of State and

Federal laws and regulations concerning hazardous materials

transportation with a scheme of uniform, national regulations. The HMTA

and HMTUSA were repealed by Public Law 103-272 (108 Stat. 745, 1379;

July 5, 1994) with the statutory provisions applicable to the

transportation of hazardous materials recodified at 49 U.S.C. 5101 et

seq.

Implementation of Section 5119

A. Creation of the Alliance for Uniform HazMat Transportation

Procedures

In 1991, the National Governors' Association (NGA) and the National

Conference of State Legislatures (NCSL) were awarded a contract to

coordinate the staffing and operations of the

[[Page 36017]]

working group. The NGA and NCSL presented recommendations to the

Secretary for the establishment of a panel to carry out the tasks of

the working group. The panel was approved by the Secretary and held its

first meeting in January 1992, at which time it selected the title

``the Alliance for Uniform HazMat Transportation Procedures'' or ``the

Alliance.''

The Alliance authorized the formation of four subgroups to address

specific areas of State hazardous materials transportation regulation.

Industry representatives were invited to participate in the subgroups.

The subgroups were:

1. Shipper and Carrier Registration Subgroup;

2. Shipper and Carrier Permitting and Licensing Subgroup;

3. Operational Issues Subgroup; and,

4. Audit and Enforcement Subgroup.

Each subgroup was asked to examine current State practices,

identify the extent to which State practices are uniform, identify

barriers to uniformity, and make recommendations for criteria on which

a uniform State program would be based.

One of the key decisions to come out of the registration subgroup

concerned shippers. After reviewing results from surveys of the States,

the subgroup decided not to recommend a shipper registration program

separate from the Federal program operated by the Research and Special

Programs Administration (RSPA).2 (The RSPA's hazardous materials

registration and fee assessment program are discussed later in this

document.) Therefore, the following discussion of the Alliance's

program only pertains to motor carriers.

2 Alliance Phase One Subgroup Reports, National Governors'

Association-National Conference of State Legislatures, June 1992. A

copy of this document is included in the docket file.

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B. Pilot Study

In May of 1992, the Alliance proceeded with the design and

implementation of a two-year pilot project. The project was based upon

the following assumptions/recommendations:

1. Base-state system for registration and collection of fees;

2. Reciprocity between states that require permits;

3. Additional information for hazardous waste transporters;

4. Individual state enforcement authority;

5. Participation by localities; and,

6. Establishment of a governing board to manage the pilot project.

Based upon the Alliance's recommendations, the FHWA funded a two-

year demonstration program for four States. During the first year, each

State would develop the internal administrative procedures and

organization to conduct a test of the Alliance's recommended program.

During the second year, the States would implement the program for

motor carriers involved in the transportation of hazardous materials.

In November of 1992, the Alliance contacted State hazardous

materials transportation program administrators to solicit

participation in the pilot study. The States of Minnesota, Nevada,

Ohio, and West Virginia were chosen based upon the following criteria

established by the Alliance:

1. The Governor and State legislature were committed to taking the

necessary legislative and administrative actions to conduct the State's

hazardous materials transportation programs under the principles and

operating procedures of the Alliance's recommendations;

2. The regulated community within the State was committed to

supporting participation in the program;

3. The State had experience in the registration and permitting of

hazardous materials, and/or in the transportation of radioactive

materials;

4. The group of States chosen reflected ``geographic diversity;''

5. At least one pilot State had a ``major locality'' with a

hazardous materials transportation registration or permitting program.

On July 1, 1993, the pilot States began registering and permitting

motor carriers in accordance with the Alliance's recommendations. Each

participating State was given the opportunity to select one of the

following three options for implementing the Alliance's Uniform

Program:

1. The State could apply the requirements of the Uniform Program to

all motor carriers (interstate and intrastate); or

2. The State could apply the requirements only to domiciled,

interstate motor carriers that operate in two or more of the pilot

States; or,

3. The State could select an even smaller sample of interstate

motor carriers.

Minnesota, Ohio, and West Virginia used option one while Nevada

selected option two for the first round of registration and permitting

with the intent of expanding the program to all motor carriers during

the second program year.

C. The Alliance's Findings and Conclusions

On March 15, 1996, the Alliance submitted its final report and

recommendations to the FHWA. The Alliance concluded that the pilot

study met the uniformity mandate of 49 U.S.C. 5119. The report states

that all of the pilot States support the program and believe that other

States should join the program to increase the benefits provided by

this uniform program and to spread the administrative load presented by

multi-state carriers. The report claims that industry participants also

support making the program uniform in all States, although the industry

believes that a shorter application form and a simplified formula for

calculating fees should be used.

The Alliance recommends that the Secretary:

1. Explore options for the consolidation of Federal and State

registration programs;

2. Consider waiving the Federal requirement for motor carriers that

have obtained a permit under the Uniform Program; and

3. Promote a one-stop repository for up-to-date information on

hazardous materials routing designations.

In addition, the Alliance's Governing Board, which was responsible

for managing the pilot program, recommends that the Congress amend

section 5119 to require that any jurisdiction that elects to register

and/or permit motor carriers to transport hazardous materials, must do

so in conformity with the Alliance's Uniform Program. The Board

recommends that the Secretary retain the authority to preempt any State

program or program provision that the Secretary determines is

inconsistent with the uniformity mandate. Additionally, the Board

recommends that the Congress establish a deadline (not less than three

years) for compliance with the mandate and provide financial support to

the Alliance to facilitate State entry into the Uniform Program.

Other Federal and State Initiatives

There are several major activities underway which may have an

impact or may be related to the State hazardous materials

transportation registration and permitting processes. These activities

include: (1) The FHWA's motor carrier safety permits and inspection

rulemaking; (2) the Research and Special Program Administration's

(RSPA) Hazardous Materials Registration and Fee Assessment Program; (3)

the Commercial Vehicle Information System (CVIS) feasibility study; and

(4) the elimination of the Interstate Commerce Commission (ICC) and the

transfer of the ICC's registration (operating authority) and insurance

programs to the FHWA. All of these

[[Page 36018]]

initiatives, as well as the FHWA's motor carrier registration

requirement--the motor carrier identification report (Form MCS-150)

required by 49 CFR 385.21 and used by the FHWA to assign USDOT

numbers--and the registration and insurance filings of for-hire motor

carriers required by many States (Single State Registration System),

are very similar or related. However, these programs are commonly

administered as separate functions by several agencies within a State.

These activities may have a significant bearing on the public

comments offered in response to this notice and on the ultimate

direction of any resulting rulemaking actions affecting Federal and

State registration and permitting of transporters and shippers of

hazardous materials. The FHWA encourages comments on the relationship

between the recommendations of the Alliance and the activities

discussed in this notice.

FHWA Rulemaking on Motor Carrier Safety Permits and the Inspection of

Vehicles Transporting Highway-Route-Controlled Quantities of

Radioactive Materials [49 U.S.C. 5109(a) and 5105(e)]

Section 5109(a), Motor Carrier Safety Permits (originally enacted

as one of the provisions of section 8 of the HMTUSA), provides that a

motor carrier shall only transport, or cause the transportation of,

hazardous materials in commerce if the carrier holds a safety permit

issued by the Secretary and keeps a copy of the permit, or other proof

of its existence, in the vehicle. The Secretary is required to

prescribe by regulation the hazardous materials and amounts to which

the permit requirement applies. However, the list of hazardous

materials must include, at a minimum and in amounts established by the

Secretary, the following:

(1) Division 1.1, 1.2, and 1.3 (class A or B explosives);

(2) liquefied natural gas;

(3) hazardous material the Secretary designates as extremely toxic

by inhalation; and

(4) a highway-route-controlled quantity of radioactive material, as

defined by the Secretary.

Section 5105(e), Inspections of Motor Vehicles Transporting Certain

Material (originally enacted as section 15 of the HMTUSA), directs the

Secretary to issue regulations requiring that each motor vehicle

transporting a highway-route-controlled quantity of Class 7

(radioactive) material in commerce be inspected and certified as

complying with the Federal hazardous materials and motor carrier safety

laws and regulations. The Secretary may require the inspections to be

conducted by Federal inspectors or in accordance with appropriate State

procedures. The Secretary may allow self-certification by motor

carriers using employees that meet minimum qualifications set by the

Secretary.

On June 17, 1993, the FHWA published a notice of proposed

rulemaking (NPRM) to implement the requirements of 49 U.S.C. 5109 and

5105 (58 FR 33418). The FHWA proposed to amend part 397 of the Federal

Motor Carrier Safety Regulations (FMCSRs) by adding a new subpart B,

Motor Carrier Safety Permits. The notice proposed to initially limit

the safety permit program to the transportation of the four classes of

hazardous materials set forth in the statute, with phase-in periods for

Division 1.1, 1.2 and 1.3 materials (Class A and B explosives) 3

and limiting the materials considered extremely toxic by inhalation to

those that meet the criteria of Division 2.3, Hazard Zone A, or

Division 6.1, Packing Group I, Hazard Zone A (see 49 CFR 173.115 and

173.132) and are transported in quantities of more than 1 liter (1.06

quarts). The proposed permit procedures made extensive use of existing

FHWA programs, forms and procedures, and as a result, the agency

proposed not to assess permit fees. To obtain a permit, a motor carrier

would be required to submit a revised MCS-150 (Motor Carrier

Identification Report) to the Regional Director, Office of Motor

Carriers, for the region in which the motor carrier has its principal

place of business. Determinations on safety permit applications would

be based upon a safety fitness finding made pursuant to 49 CFR part

385. A ``satisfactory'' safety rating would be a prerequisite to the

granting of a safety permit. A less than ``satisfactory'' safety rating

would result in a denial of the permit application. The FHWA would have

the discretion to issue a temporary safety permit (120 days) to an

unrated motor carrier pending a safety fitness determination. Safety

permits would be valid for three years and would be renewable. Reviews

of the FHWA's determinations on permit issuance would be handled

pursuant to the existing procedures applicable to safety rating reviews

(49 CFR 385.15 and 385.17). The current safety rating notification

letter would be modified to serve as the safety permit. The letter

would bear a safety permit number, which would be the motor carrier's

identification or census number assigned by the FHWA when the motor

carrier submits the MCS-150 required by Sec. 385.21. Motor carriers

would be required to display this permit number on the shipping papers

and on the commercial motor vehicles used.

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\3\ The proposed phase-in period was to be implemented as

follows:

Effective date and covered quantities of class A and/or B

explosives:

Nov. 16, 1993--454 kilograms (1,000 pounds) or more.

Nov. 16, 1994--227 kilograms (500 pounds) or more.

Nov. 16, 1995--25 kilograms (55 pounds) or more.

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With regard to the inspection requirements of 49 U.S.C. 5105, the

FHWA proposed that motor carriers transporting highway-route-controlled

quantities of Class 7 (radioactive) materials be required to inspect

each commercial motor vehicle used before each trip and that a written

certification by a qualified inspector be maintained. It was proposed

that these vehicles be inspected through the use of the general

inspection requirements contained in 49 CFR part 396, ``Inspection,

Repair, and Maintenance,'' and the more detailed inspection standards

found in appendix G to 49 CFR subchapter B, ``Minimum Periodic

Inspection Standards.'' The inspector qualification requirements for

the periodic inspection (specified in 49 CFR 396.19) would be used to

ensure that inspectors are qualified to perform the vehicle

inspections.

The FHWA carefully reviewed the various registration and permitting

requirements of the Federal law and decided not to proceed with further

rulemaking action to implement the requirements of 49 U.S.C. 5109 and

5105 until it had considered the final report and recommendations of

the Alliance for implementing section 5119. This was considered the

most effective way to satisfy all of these related statutory

requirements, as the Alliance's recommendations would have a

significant bearing on the implementation of the Federal safety permit

and inspection requirements.

Federal Hazardous Materials Registration and Fee Assessment Program and

the Hazardous Materials Emergency Preparedness Grant Program

Section 5108(a)(1) (originally enacted as one of the provisions of

section 8 of the HMTUSA) requires that each person transporting or

causing to be transported in commerce the following hazardous materials

must file a ``registration statement'' with the Secretary:

(1) Highway-route-controlled quantities of Class 7 (radioactive)

materials;

(2) more than 25 kilograms of Division 1.1, 1.2 and 1.3

(explosives) materials;

[[Page 36019]]

(3) more than 1 liter in each package of a hazardous material which

has been designated by the Secretary as extremely toxic by inhalation;

(4) hazardous material in a bulk package, container, or tank as

defined by the Secretary if the package, container, or tank has a

capacity of 13,249 or more liters (3,500 or more gallons) or has a

volume greater than 13.25 cubic meters (468 cubic feet);

(5) a shipment of at least 2,268 kg (5,000 pounds) (except in a

bulk packaging) of a class of hazardous material requiring a placard.

In addition, section 5108(a)(2) provides the Secretary with

discretionary authority to require any of the following persons to file

a registration statement:

(1) A person transporting or causing to be transported hazardous

materials in commerce and not covered by section 5108(a)(1);

(2) a person manufacturing, fabricating, marking, maintaining,

reconditioning, repairing, or testing a package or container the person

represents, marks or certifies, or sells for use in transporting in

commerce hazardous material the Secretary designates.

Paragraph (g) of section 5108 authorizes the Secretary to

establish, impose, and collect a fee for the processing of the

registration statement as well as an annual fee.

Implementation of these requirements was delegated by the Secretary

to the RSPA. Federal registration of hazardous materials offerors and

transporters began in 1992 (57 FR 30620, July 9, 1992). Federal

registration is required of persons engaged in certain activities that

involve the offering or transporting of hazardous materials in

interstate, intrastate, or foreign commerce by highway, rail, air, or

water. Less than half of the current registrants have identified

themselves as highway carriers. The Federal registration program has no

preemptive effect upon State and local hazardous materials registration

programs.

The annual fee is used to fund grants to State and Indian tribal

governments for hazardous materials planning and training purposes. The

funds are allocated through the RSPA's Federal Hazardous Materials

Emergency Preparedness (HMEP) Grant Program with the first grants

awarded to qualifying State and Indian tribal governments in 1993.

In cooperation with the Alliance's pilot program, the concept of

``one-stop shopping'' for Federal and State registration of motor

carriers was tested by the Public Utilities Commission of Ohio (PUCO)

and the RSPA. Motor carriers required to register with the State of

Ohio were provided with the option of also submitting the Federal

registration statement and fee to the PUCO for transmittal to the RSPA.

For the 1994-95 registration year (from July 1, 1994 to June 30, 1995),

approximately 200 persons registered in the Federal program through the

PUCO. During the 1995-96 registration year, the number of persons

choosing this option decreased sharply to 76 persons. Only 16 of the

participants in the 1994-95 registration year elected to use this

process for the 1995-96 registration year.

The Alliance's report, discussed above, recommends that the

Secretary explore the consolidation of Federal and State registration

programs. The FHWA notes, however, that there are substantial

differences between the existing Federal registration program and the

program recommended by the Alliance. Commenters should familiarize

themselves thoroughly with the purpose and scope of coverage of each

program in preparation for providing comments regarding this

recommendation by the Alliance.

The Commercial Vehicle Information System (CVIS)

The CVIS project is a feasibility study mandated by 49 U.S.C.

31106, which was originally enacted by section 4003 of the Intermodal

Surface Transportation Efficiency Act of 1991 (ISTEA) (Pub. L. 102-240,

105 Stat. 1914, 2144; December 8, 1991). Specifically, the CVIS ties

commercial motor vehicle registration privileges to a motor carrier's

safety performance. For the first time, chronically unsafe motor

carriers risk losing their vehicle registration privileges if they

prove unable or unwilling to improve their operational safety levels

after a designated period. The project is a cooperative effort

involving the FHWA and five pilot States: Iowa (the lead State),

Oregon, Colorado, Minnesota, and Indiana.

Motor carriers are identified for inclusion in the CVIS improvement

process (MCSIP--Motor Carrier Safety Improvement Process) through the

application of a carrier identification and prioritization algorithm

referred to as the Safestat Identification Algorithm (Safestat).

Safestat identifies ``At Risk'' motor carriers by producing a safety

score for every interstate motor carrier. Motor carriers are ranked on

a worst-first basis. Motor carriers with the lowest scores are

considered to be ``At Risk'' and are scheduled for a compliance review

(on-site visit), while motor carriers with less severe safety scores

receive ``warning letters.'' Once a motor carrier has been identified

for entry into the MCSIP, its safety performance is monitored using a

second algorithm called the Safestat Monitoring Algorithm. The MCSIP

process has been designed to provide numerous opportunities for motor

carriers to improve their safety performance. Failure to improve safety

performance, however, will result in progressively more severe

penalties leading eventually to suspension or revocation of vehicle

registration privileges.

The CVIS could be used to identify hazardous materials (HM)

carriers that are ``At Risk'' by modifying the Safestat Identification

Algorithm to include additional information about HM motor carriers. In

fact, it has been suggested that a separate safety evaluation area

relating to HM be included in the Safestat Identification Algorithm.

Under this proposal, HM carriers that have been identified for entry

into the MCSIP process and continue to score poorly may have their HM

permits denied or suspended.

Interstate Commerce Commission's (ICC) Carrier Registration and

Insurance Requirements

On December 29, 1995, the President signed the ICC Termination Act

of 1995 (the Act) (Pub.L. 104-88, 109 Stat. 803), which eliminates the

ICC and transfers certain motor carrier regulatory functions from the

ICC to the FHWA. The principal functions being transferred are the

licensing/registration activities, insurance tracking, Mexican motor

carrier oversight, and responsibilities for brokers, freight

forwarders, and household goods carriers. All past operating authority

licenses and financial responsibility filings will remain valid, and

all pending applications and financial responsibility filings will be

processed by the FHWA. Future applications and insurance filings will

continue to be accepted by the FHWA. The Act provides that registration

generally remains in effect for up to five years unless it is

suspended, amended, or revoked. Reasons for suspension or revocation

may include unsafe operations, lack of the required financial

responsibility coverage, or failure to comply with regulatory

requirements.

The ICC and the FHWA motor carrier programs have the common goal of

ensuring that motor carriers are properly identified, have adequate

levels of financial responsibility, and operate in a safe manner. Under

the present programs, for-hire motor carriers are registered and must

show proof of

[[Page 36020]]

financial responsibility and familiarity with the FHWA's safety

regulations. The financial responsibility coverage of for-hire motor

carriers is continuously monitored. Policy pre-expiration notices

obtained from the insurance companies as well as internal audits are

used to determine compliance. Prior to an insurance policy lapsing, the

carrier is contacted. Enforcement action, including litigation, can be

used to stop the carrier from operating without financial

responsibility. A carrier's operating authority can be revoked if

financial responsibility is not obtained. A similar procedure applies

to motor carriers that have been authorized to self-insure.

The Single State Registration System (SSRS) program was created to

succeed the ``bingo card'' program administered by the ICC. The SSRS

program is a base-State system whereby a motor carrier registers its

interstate operating authority with and provides proof of financial

responsibility coverage to one State (a base-State) instead of multiple

States. The base State then distributes the collected fees to other

participating States in which the motor carrier's vehicles operate.

State participation in the System was limited to those States

participating in the bingo card program prior to January 1991. Fee

amounts were limited to those imposed prior to November 1991, not to

exceed $10 per vehicle.

Under the Act, the SSRS will continue to operate. However, the

Department is required to consolidate the current USDOT identification

number system, the SSRS, the ICC registration system (including

financial responsibility registration) into a single, on-line Federal

system. The new system will contain information on, and identification

of, all foreign and domestic motor carriers, brokers, and freight

forwarders (as well as others required to register with the Department

of Transportation) as well as information on safety fitness and

compliance with the required levels of financial responsibility

coverage. The Secretary may establish fees to fully operate the system,

including any personnel to support the overall registration and

financial responsibility filing system.

Request for Comments

The FHWA requests comments on the Alliance's final report and

recommendations, as outlined in this notice. As discussed above,

several major activities related to the hazardous materials

transportation registration and permitting processes are also underway.

The FHWA encourages commenters to consider these activities and their

relationship to the final report and recommendations of the Alliance.

Based upon the comments received, the FHWA may hold public meetings to

further discuss these issues.

Copies of the report (``Final Report: Uniform Program Pilot

Project,'' March 15, 1996) may be ordered at no charge from the

National Governors' Association. Requests should be addressed to:

National Governors' Association, c/o Mr. Kyle Winston, Hall of the

States, 444 North Capitol Street, Suite 267, NW., Washington, D.C.

20001-1512. Request for copies may also be made by calling the NGA at

(202) 624-5300 or via fax (202) 624-5395.

All comments received before the close of business on the comment

closing date indicated above will be considered and will be available

for examination in the docket at the above address. Comments received

after the comment closing date will be filed in the docket and will be

considered to the extent practical. In addition to late comments, the

FHWA will also continue to file relevant information in the docket as

it becomes available after the closing date. Interested persons should

continue to examine the docket for new material.

List of Subjects in 49 CFR Part 397

Hazardous materials transportation, Highway safety, Motor carriers.

Issued on: July 2, 1996.

Rodney E. Slater,

Federal Highway Administrator.

[FR Doc. 96-17420 Filed 7-8-96; 8:45 am]

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